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A new deal; now what?

Author: 
Nigel Morris-Cotterill

Both UK Prime Minister Boris Johnson and EU President Junker have announced that a revised deal has been done for the UK to withdraw from the European Union. But both accept that it's not a done deal. Junker has to go back to the European Commission and its 27 members some of whom are resistant to the principle of "Brexit." Johnson has to go back to the House of Commons where several party leaders are, in effect, filibustering to defeat the withdrawal on any terms. And in Brussels, in the EU Parliament, which also has to sign off on the deal, the UK's Brexit Party's leader, Nigel Farage, has already said he doesn't approve of it.

Last Sunday, speaking on Sky News, the leader of the UK's Labour Party, Jeremy Corbyn, at last made his position clear: he wants to force a delay by relying on the The European Union (Withdrawal) (No. 2) Act 2019 (variously, colloquially, known as The Benn Act or The Surrender Act). Having rejected Johnson's attempt to call a General Election, Corbyn's plan is to force Johnson into a conflict with Parliament in such a way as to make his position untenable and a vote of no confidence in the government winable. That would force an election which Corbyn's party would go into with the advantage of being the party that had forced the incumbent government out of power - and assuming that swing voters love a winner, he hopes to pick up marginal seats aplenty. When, he says, Labour wins, he will run a second referendum in which the proposed deal will be put to the electorate. But he also said something that he had previously not made clear: he would have the option to remain in the EU on that ballot paper. In short, Corbyn has crumbled in the face of demands from radicals in his own party (and he has a lot of radicals of various hues including very dark red) who have long argued for a second referendum and which he had always maintained would not include a "remain" option because, to do so, would be tantamount to undermining democracy.

Undermining democracy is exactly the policy of the Liberal-Democrats. This is the party that formed a coalition with David Cameron's government which worked out badly for everyone. Is current leader, a broad left politician called Jo Swinson, has said today that she is determined to stop Brexit.

The Scottish Nationalist Party (SNP) are also against doing a Brexit deal - and to the UK leaving at all. They have argued strongly that there should be a second referendum, with a "remain" option and while there is no love lost between the socialist SNP and the Labour party, they have the same objective albeit for different reasons.

The Conservative government does not have an absolute majority and is dependent on the votes of the DUP party from Northern Ireland. This has made the DUP the kingmakers in the Brexit negotiations in the UK. The DUP says it does not accept the latest proposed deal.

The major sticking point in the deal has been how to deal with the situation on the Island of Ireland which is separated into the Republic in the South and Ulster in the North. Ulster is the Northern Ireland bit in the full name of The United Kingdom of Great Britain and Northern Ireland. While the UK and Ireland are not part of the Schengen zone, the UK and Ireland have their own version: for citizens of those countries, there is free passage across both land and sea borders with essentially no formalities. That applies to goods and services, too, some of which is EU based and some of which is bilateral agreements that countries are not supposed to have under EU law.

One issue that has long caused distortion in the market of the two parts of Ireland is that of Value Added Tax. Once the UK is no longer part of the EU VAT system, the opportunity for fraud and evasion will be increased in the absence of a border. So the proposal, highly simplified, is this: the whole of the island of Ireland will be treated as a customs zone with Northern Ireland following a limited part of the EU's VAT law and falling under UK law, whatever it becomes later, for most things. Like the other thing that worried the EU, that of non-EU approved goods entering the EU via an open border, this will be dealt with by a point of final destination declaration and all goods entering Ulster at any sea or air port will be required to make such a declaration. This, of course, means that the paperwork in the hands of e.g. shipping companies will be marginally increased but in the hands of customs there will be a big increase. The only material difference is that some goods arriving in Northern Ireland from any other part of the UK will be subject to inspection and declaration both as to compliance with EU regulations and Irish VAT.

The new agreement is hugely truncated: it's only 10% of the length of the previous version. But that's been achieved by including those earlier provisions which remain unchanged. Having said that, much has changed and it's the things that were causing trouble on all sides in the previous proposal. The very first line of the new agreement says "This Protocol is without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people." Moreover, there is the following: "The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms....The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards." That is about as unequivocal as it gets.

Even more, the "border-light" provisions for movement of persons within the UK-Ireland common travel area are expressly approved in the new agreement while, for travel outside that agreement, respecting EU law. In short, no change at all from the existing position which has worked superbly for a long time.

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